ENROLLED
COMMITTEE SUBSTITUTE
FOR
H. B. 2586
(By Delegates Beane, Gallagher, Manuel and Johnson)
[Passed March 10, 1995; in effect ninety days from passage.]
AN ACT to amend and reenact section ten, article five, chapter
thirty-eight of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections four and five, article five-a of said chapter, all
relating to revising the procedures for collection against
judgment debtors; providing that service of a summons
against a suggestee and the return thereof is governed by
the rules of civil procedure for trial courts of record;
prescribing the method of service of notice of execution on
a judgment debtor and of a suggestee execution on a
suggestee; increasing the fee which may be charged for
serving a notice on a judgment debtor; allowing service of
a suggestee execution on a suggestee by certified mail or by
the sheriff; permitting a clerk to issue a suggestion in the
county where the judgment is entered and to mail it to the
sheriff of another county for service; and making technical
and grammatical corrections.
Be it enacted by the Legislature of West Virginia:
That section ten, article five, chapter thirty-eight of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections four and
five, article five-a of said chapter be amended and reenacted,
all to read as follows:
ARTICLE 5. PROCEEDINGS IN AID OF EXECUTION; INTERROGATORIES;
SUGGESTION.
§38-5-10. Suggestion on judgment; summons against person
suggested.
(a) Upon a suggestion by the judgment creditor that a person
is indebted or liable to the judgment debtor or has in the
person's possession or control personal property belonging to
the judgment debtor, which debt or liability could be enforced,
when due, or which property could be recovered, when it became
returnable, by the judgment debtor in a court of law, and which
debt or liability or property is subject to the judgment
creditor's writ of fieri facias, a summons against such person
may be issued out of the office of the clerk of the circuit court
or of the magistrate court of the county in which the judgment
creditor obtained the writ of fieri facias, requiring such person
to answer the suggestion in writing and under oath. Service of
a summons issued under this section may be made as provided by
subdivision (1), subsection (d) of rule four of the rules of
civil procedure for trial courts of record. The return day for
a summons issued under this section is governed by the provisions
of rule sixty-nine of the rules of civil procedure for trial courts of record.
(b) The suggestion by the judgment creditor provided for
herein shall include, to the extent possible, the present address
and social security number of the judgment debtor, which
information shall be made available to the person suggested for
purposes of identifying the judgment debtor and facilitating a
proper answer to the suggestion.
ARTICLE 5A. SUGGESTIONS OF SALARY AND WAGES OF PERSONS ENGAGED
IN PRIVATE EMPLOYMENT.
§38-5A-4. Notice to judgment debtor; time for service on
suggestee; fee.
A certified copy of an execution issued under this article
against salary or wages shall be served upon the judgment debtor.
Such service shall be made by the court or the clerk of the court
who issued the execution by mailing the copy to the judgment
debtor or his agent authorized to accept service of process by
certified mail, return receipt requested. The day and hour of
such mailing shall be clearly noted on the face of the original
execution and the clerk of the court or the officer to whom it is
delivered for collection shall not make service upon the
suggestee until the expiration of five days from that time. The
fee for service of notice under this section shall be one dollar
and an additional allowance for postage, certification fee, or
other expenses incurred in effecting service.
§38-5A-5. Service of suggestee execution upon suggestee;
payments in satisfaction of execution; action for
failure or refusal to pay; payments to be made every ninety days.
(a) Service of a suggestee execution against salary or
wages may be made by the clerk of the circuit court or the
magistrate court clerk, as the case may be, by sending a copy of
the suggestee execution to the suggestee by certified mail,
return receipt requested, with delivery restricted to the
addressee. If the registered mail is unclaimed, or otherwise is
not accepted or is refused by the suggestee, then service of the
suggestee execution shall be made in the same manner as a summons
commencing an action is served, in accordance with the rules of
civil procedure for trial courts of record: Provided, That if
the suggestee is located in a county other than the county where
the suggestee execution issues, the clerk may mail the suggestee
execution by first class mail to the sheriff of the other county
for such service.
(b) If the suggestee served with the execution is indebted
or will in the future become indebted to the judgment debtor for
salary or wages, then during the time the execution remains a
lien on any indebtedness for salary and wages, the suggestee is
required to pay over to the officer serving the same or to the
judgment creditor the percentage of the indebtedness required by
section three of this article, until the execution is wholly
satisfied. The suggestee shall deduct the amounts paid from the
amounts payable to the judgment debtor as salary or wages, and
the deduction of these amounts is a bar to any further action by
the judgment creditor against the wages or salary of the judgment
debtor.
(c) Once every ninety days during the life of such
execution and any renewal execution, the suggestee upon whom the
execution or any renewal execution is served shall pay over to
the officer who served the same or to the judgment creditor the
full amount of money held or retained pursuant to such execution
or renewal execution during the preceding ninety days.
If the suggestee upon whom the execution is served fails or
refuses to pay over to the officer serving the execution or to
the judgment creditor the required percentage of the
indebtedness, as aforesaid, he or she shall be liable to an
action therefor by the judgment creditor named in the execution
and the amount recovered in the action shall be applied in
satisfaction of the execution.